RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 Harris v. Carter No. 02-3114

ELECTRONIC CITATION: 2003 FED App. 0255P (6th Cir.) File Name: 03a0255p.06 LITIGATION, Cleveland, Ohio, for Appellant. Theresa G. Haire, PUBLIC DEFENDER’S OFFICE, OHIO PUBLIC DEFENDER COMMISSION, Columbus, Ohio, for Appellee. UNITED STATES COURT OF APPEALS ON BRIEF: Mark Joseph Zemba, OFFICE OF THE ATTORNEY GENERAL OF OHIO, CORRECTIONS FOR THE SIXTH CIRCUIT LITIGATION, Cleveland, Ohio, for Appellant. Theresa G. ______Haire, PUBLIC DEFENDER’S OFFICE, OHIO PUBLIC DEFENDER COMMISSION, Columbus, Ohio, for Appellee. EZZARD CHARLES HARRIS, X Petitioner-Appellee, - ______- - No. 02-3114 OPINION v. - ______,> HAROLD E. CARTER, Warden, - KENNEDY, Circuit Judge. Harold E. Carter, Warden, Respondent-Appellant. - appeals the district court’s conditional grant of habeas relief N to Ezzard Harris. The district court granted the petition after concluding (1) that Harris was presumptively denied his Sixth Appeal from the United States District Court Amendment right to effective assistance of counsel when the for the Northern District of Ohio at Toledo. state trial court failed to inquire as to whether his counsel had No. 00-07336—John W. Potter, District Judge. a conflict of interest after being so advised by counsel, and (2) that Harris was denied his Sixth Amendment right to effective Argued: June 19, 2003 assistance of counsel due to defense counsel’s actual conflict of interest. For the foregoing reasons, we AFFIRM the Decided and Filed: July 29, 2003 district court’s decision to grant the writ.

Before: KENNEDY and COLE, Circuit Judges; I. WILLIAMS, District Judge.* Ezzard Harris and Kevin Payton were charged in state court ______with various offenses arising out of a drive-by shooting incident in Fremont, Ohio. Harris and Payton were COUNSEL represented by Attorney George Evans. Evans did not foresee a conflict of interest when he undertook the joint ARGUED: Mark Joseph Zemba, OFFICE OF THE representation. Harris and Payton told Evans that neither ATTORNEY GENERAL OF OHIO, CORRECTIONS would accept a plea bargain in exchange for testimony against the other. Evans planned a common defense for presentation at what was expected to be a joint trial. On the day that Harris and Payton were scheduled for trial, the state trial court * The Honorable Glen M. Williams, United States District Judge for sua sponte ordered Payton to be tried before Harris. Payton the Western District of Virginia, sitting by designation.

1 No. 02-3114 Harris v. Carter 3 4 Harris v. Carter No. 02-3114 had been convicted, but not sentenced, when Harris’ trial that he was not the shooter. Evans did not cross-examine began. Payton. The jury found Harris guilty as charged. Payton invoked his Fifth Amendment right against self- On direct appeal, Harris claimed that “[t]he Court of incrimination when called to testify at Harris’ trial. The Common Pleas committed reversible error when it permitted prosecution asked the trial court to order Payton to testify testimony of co-defendant Kevin Peyton [sic] and Mr. Harris under a grant of immunity from prosecution for any was denied effective assistance of counsel because his trial additional crimes related to the drive-by shooting incident, counsel could not effectively represent him while representing with the exception of perjury and falsification. Immediately Mr. Peyton [sic] at the same time.” The Ohio Court of after the trial court granted the request, the following Appeals denied the appeal. The Ohio Supreme Court denied exchange took place between the trial judge and Evans: leave to appeal. MR. EVANS: Your Honor, may I request that Mr. While Harris’ direct appeal was still pending before the Payton, due–in lieu of the fact that he’s, for all intents Ohio Supreme Court, he applied to reopen that appeal under and purposes, indigent since he’s in jail, be assigned Ohio Rule of Appellate Procedure 26(B), claiming in relevant appointed counsel for the purpose of representing him part that “Harris was denied the effective assistance of during his questioning here? counsel when defense counsel created a conflict of interest by THE COURT: The only thing he–He has immunity, so representing Harris and his co-defendant, knowing that the there’s really no need for that. co-defendant, like Harris, had denied responsibility, but MR. EVANS: Right. I understand that, your Honor. knowing also that the co-defendant might be called to testify But he cannot be given immunity from falsification. And and would implicate Harris as the shooter.” The Ohio Court there’s no indication, you know, I mean one way or the of Appeals denied the application, and the Ohio Supreme other, so to speak, that–Let’s put it this way. We know Court denied leave to appeal. he’s given a prior statement to the police, and we know that if that prior statement was an attempt to mislead a On June 5, 2000, Harris filed a petition for a writ of habeas public official in their duties that he could be subject to corpus claiming that “Petitioner was denied the effective criminal liability for that. And I think–I’m just–You assistance of counsel due to his lawyer’s conflict of interest.” now, I don’t know if Mr. Payton is aware of that, so to The district court initially denied Harris’ petition based on its speak. And I represent him, but clearly if he’s going to conclusion that the petition was time barred by the one-year be given immunity I am suggesting that that would cause limitations period of 28 U.S.C. § 2244(d)(2) because a Rule a problem for me to represent him right now, and Mr. 26(B) application was part of Ohio’s collateral review Harris. process. Harris filed a motion under Federal Rule of Civil THE COURT: Because I’ve given him immunity, I Procedure 59(e) to alter or amend the judgment, which the don’t see the problem. Bring in the jury. district court granted in light of the rule established in Bronaugh v. Ohio, 235 F.3d 280 (6th Cir. 2000) (holding that On direct examination, Payton testified that he and Harris a Rule 26(B) application must be analyzed under were the only men in the van identified as being involved in § 2244(d)(1)(A) as part of Ohio’s direct review process). The the drive-by shooting and that he was the driver. Payton also district court held an evidentiary hearing on the issue of testified that he was in the van when the victims were shot but whether Harris’ trial counsel was ineffective as a result of an No. 02-3114 Harris v. Carter 5 6 Harris v. Carter No. 02-3114 actual conflict of interest. After the hearing, the district court A state court decision is contrary to clearly established granted Harris habeas relief, ordering that he be released from federal law “if the state court arrives at a conclusion opposite custody unless granted a new trial within ninety days. The that reached by [the Supreme] Court on a question of law or State filed a timely notice of appeal. if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts.” II. Williams v. Taylor, 529 U.S. 362, 412-13 (2000). A state court decision is an unreasonable application of clearly Harris claims that he is entitled to habeas relief on the established federal law “if the state court identifies the correct ground that his Sixth Amendment right to effective assistance governing legal principle from [the Supreme] Court’s of counsel was violated due to his lawyer’s conflict of decisions but unreasonably applies that principle to the facts interest. This Court reviews de novo the district court’s of the prisoner’s case.” Id. at 413. The Supreme Court has conclusions of law, including mixed questions of law and cautioned that a “federal habeas court may not issue the writ fact, and its findings of fact for clear error. Moss v. Hofbauer, simply because that court concludes in its independent 286 F.3d 851, 858 (6th Cir. 2002). Section 2254(d) of title 28 judgment that the relevant state-court decision applied clearly of the United States Code sets forth the standard for granting established law erroneously or incorrectly. Rather, that a writ of habeas corpus: application must also be unreasonable.” Id. at 411. An application for a writ of habeas corpus on behalf of To show a violation of the Sixth Amendment right to a person in custody pursuant to the judgment of a State counsel, clearly established Supreme Court precedent requires court shall not be granted with respect to any claim that a defendant to demonstrate (1) that his or her attorney “made was adjudicated on the merits in State court proceedings errors so serious that counsel was not functioning as the unless the adjudication of the claim– ‘counsel’ guaranteed the defendant by the Sixth (1) resulted in a decision that was contrary to, or Amendment,” and (2) that the attorney’s deficient involved an unreasonable application of, clearly performance was so prejudicial that it “deprive[d] the established Federal law, as determined by the Supreme defendant of a fair trial, a trial whose result is reliable.” Court of the United States; or Strickland v. Washington, 466 U.S. 668, 687 (1984). In the (2) resulted in a decision that was based on an context of an alleged conflict of interest in representation, the unreasonable determination of the facts in light of the test for a Sixth Amendment violation has been modified by evidence presented in the State court proceeding. clearly established Supreme Court precedent. In cases where a defendant or defense counsel makes a timely objection to The parties do not dispute the reasonableness of the facts joint representation based on an asserted conflict of interests determined in the state court proceedings. Thus, to be entitled and the trial court fails to inquire as to whether the conflict to relief under § 2254(d), this Court must find that the warrants the appointment of separate counsel, prejudice is decision of the Ohio Court of Appeals was either contrary to, presumed and reversal is automatic. Holloway v. Arkansas, or an unreasonable application of, the Supreme Court’s 435 U.S. 475, 484-88 (1978); see also Cuyler v. Sullivan, 446 clearly established precedents. Price v. Vincent, 123 S.Ct. U.S. 335, 346 (1980) (“Holloway requires state trial courts to 1848, 1852-53 (2003). investigate timely objections to multiple representation.”). The issue presented to the Holloway Court was whether co- defendants at trial were denied their Sixth Amendment right No. 02-3114 Harris v. Carter 7 8 Harris v. Carter No. 02-3114 to counsel when the co-defendants “made timely motions for interest holding, the district court found that Payton’s appointment of separate counsel, based on the representations testimony had clearly implicated Harris, that the manner in of their appointed counsel that, because of confidential which Payton testified was damaging to Harris, and that a information received from the codefendants, he was portion of Payton’s testimony implicating Harris conflicted confronted with the risk of representing conflicting interests with the testimony of another prosecution witness. The and could not, therefore, provide effective assistance for each district court noted that Evans not only failed to cross- client.” Id. at 476-77. examine Payton, he also failed to object to a number of clearly objectionable questions posed by the prosecutor. The In cases where neither the defendant nor defense counsel district court credited Evans’ testimony at the evidentiary makes a timely objection to joint representation, prejudice is hearing that he could not cross-examine Payton because he presumed only if the defendant demonstrates on appeal that feared subjecting Payton to further prosecution, harming “an actual conflict of interest adversely affected his lawyer’s Harris’ defense, and revealing client confidences. For the performance.” Cuyler, 446 U.S. at 348-350; see also Riggs reasons discussed below, although not error, it was not v. United States, 209 F.3d 828, 831 n.1 (6th Cir. 2000) necessary for the district court to find an actual conflict of (“[T]his [C]ircuit applies the Cuyler analysis to all Sixth interest before presuming prejudice. Amendment conflict-of-interest claims. One exception, not applicable here, is in those cases where the trial court was On direct appeal, the Ohio Court of Appeals affirmed that informed by counsel or the defendant of a potential conflict a claim of ineffective assistance of counsel is governed by of interest but failed to inquire into that conflict: in such Strickland, and recited the required elements. The court cases, prejudice is presumed and reversal is automatic.”) proceeded to review the Supreme Court’s opinions in (internal citation omitted). Cuyler generally limits a trial Holloway and Cuyler. The court read Holloway as imposing court’s duty to initiate a conflict of interest inquiry to those a duty on a trial court to inquire into whether the risk of a cases in which the trial court either “knows or reasonably conflict of interest unconstitutionally endangered a should know that a particular conflict exists.” 446 U.S. at defendant’s Sixth Amendment right to counsel when counsel 346-47. The issues presented to the Cuyler Court included represents multiple defendants at one trial. The court read whether “a state trial judge must inquire into the propriety of Cuyler as imposing a duty on a trial court “to inquire into the multiple representation even though no party lodges an possibility of conflicts of interest posed by multiple objection,” and “whether the mere possibility of a conflict of representation only . . . in cases where the trial judge knows interest warrants the conclusion that the defendant was or reasonably should know that a possible conflict of interests deprived of his right to counsel.” Id. at 345. exists.” The court further noted that the Cuyler Court had observed that “separate trials for . . . co-defendants Before addressing the state court’s adjudication of Harris’ significantly reduce[s] the potential for a divergence in their claim, we note that the district court held that Harris was interests.” entitled to habeas relief because (1) he was entitled to the presumption of prejudice and automatic reversal under In light of this precedent, the appeals court concluded that Holloway, and (2) he was entitled to the presumption of “nothing in the circumstances of this case indicates that the prejudice and automatic reversal under Cuyler due to Evans’ trial court had a duty to inquire into whether there was a actual conflict of interest adversely effecting his conflict of interest,” noting that Payton and Harris were tried representation of Harris. In support of its actual conflict of separately and that Evans’ role in representing Payton was No. 02-3114 Harris v. Carter 9 10 Harris v. Carter No. 02-3114

“all but over” because Payton had been convicted when he The trial court cursorily rejected the request. In assessing the testified at Harris’ trial. We read this holding as finding that sufficiency of defense counsel’s objection to the joint Holloway was inapplicable to this case because Harris and representation arrangement, the Court dismissed the argument Payton were not tried jointly and that Cuyler did not impose that defense counsel should have presented its request for the a duty to inquire in this case because Harris and Payton’s appointment of separate counsel more vigorously and in separate trials minimized the risk of conflict and Payton had greater detail, noting that the trial court’s response little need for Evans’ continued representation. Finally, the discouraged the continued pursuit of the request and that a appeals court held that even if Harris’ Sixth Amendment more detailed presentation of the conflict of interest problem claim was analyzed under the Cuyler actual prejudice posed the risk of violating the lawyer’s duty of confidentiality standard, his claim failed because Harris had not to his clients. Holloway, 435 U.S.. at 485. demonstrated, and the court itself could not see, that an actual conflict of interest had adversely effected Evans’ We find that the grounds for Evans’ request for the representation of Harris. appointment of separate counsel should have been apparent to the state trial court. Evans raised his request twice, The state appeals court opinion does not mention Evans’ explaining that the appointment of separate counsel was request for the appointment of separate counsel, nor does it necessary because he could not effectively protect Payton’s discuss the role that a timely objection or motion for the interests during his testimony against Harris while appointment of separate counsel plays in the analysis of a simultaneously representing Harris’ interests, given the Sixth Amendment claim based on counsel’s representation of confidential communications he had with each man. Because conflicting interests. Because the appeals court concluded the objection raised by Evans mirrors that recognized by the that there was no reason for the trial court to know that a Holloway Court, we find that Evans request sufficiently conflict of interest existed in the joint representation informed the trial court of the basis for his objection to his arrangement, we read the opinion as implicitly finding that continued representation of Payton and Harris. Evans’ request for separate counsel failed to sufficiently inform the trial court that the joint representation arrangement We further note that Evans’ objection was timely despite posed a conflict of interest now that Payton was required to the fact that Evans did not raise the conflict of interest issue testify. The appeals court’s conclusion in this regard is until Harris’ trial was underway. As observed in Holloway, contrary to the Holloway Court’s holding regarding what “an ‘attorney representing two defendants in a criminal matter constitutes a sufficient notice to the trial court. In Holloway, is in the best position professionally and ethically to defense counsel was appointed to represent three defendants determine when a conflict of interests exists or will probably at a joint trial. Defense counsel repeatedly objected to the develop in the course of trial,’” and “defense attorneys have arrangement prior to trial to no avail. At trial, when each of an obligation, upon discovering a conflict of interests, to the defendants decided to testify against the advice of advise the court at once of the problem.” Id. at 485-86. Thus, counsel, defense counsel again raised an objection to the joint a conflict of interest objection is timely not only when it is representation on the ground that confidential raised before trial, but also when it is raised during the course communications with each defendant precluded the attorney of the trial. Id. at 495 n.4 (Powell, J., dissenting). This is from examining one defendant while protecting the interests particularly true where, as here, the conflict of interests did of the other two defendants through cross-examination or not arise until Payton received immunity and was compelled objections to the prosecuting attorney’s cross-examination. to testify. Because the trial court failed to investigate Evans’ No. 02-3114 Harris v. Carter 11 timely objection, the Ohio Court of Appeals should have presumed prejudice and automatically reversed Harris’ conviction. Its finding was contrary to clearly established federal law as stated in Holloway. III. Conclusion For the foregoing reasons, we AFFIRM the district court’s grant of Harris’ petition for habeas relief on the ground that the decision of the Ohio Court of Appeals is contrary to Holloway. Harris was presumptively denied his Sixth Amendment right to counsel when the state trial court failed to inquire as to whether Evans had a conflict of interest after being so informed, and therefore is entitled to automatic reversal of his conviction.